Witness for the Prosecution

Yesterday the Obama Administration, after a delay of several years, released an important document relating to the Bush Administration’s torture policies: a memorandum by Philip Zelikow, a high-ranking State Department lawyer and confidant of Condoleezza Rice, which aggressively refuted Justice Department memoranda that sought to authorize the use of thirteen “enhanced interrogation techniques” used by the CIA. Zelikow’s memo concluded that the use of these techniques would constitute prosecutable felonies—war crimes. As Zelikow explained in an appearance before the Senate Judiciary Committee in 2009, his memo, when it was circulated in February 2006, caused senior figures in the Bush White House to go ballistic—they actually sought to collect and destroy all the copies.

The memo is not only a significant historical document, it may also provide important evidence in future criminal prosecutions arising out of the Bush-era torture programs. Indeed, the Bush White House fully appreciated this possible consequence, which explains why they tried so hard to make the memo disappear and why Bush-era officials apparently pressed their successors to withhold the memo, delaying its release for three years.

Conservative defenders of the Bush torture team argue that even if the techniques used constituted torture or cruel, inhuman, and degrading (CID) conduct, they were entitled to rely on advice from Justice Department lawyers that said the opposite. In order for a prosecution to succeed, a prosecutor would have to show that the accused understood that what he was doing was a crime. In United States v. Altstoetter, a case in which government lawyers were prosecuted for their role in, among other things, providing a legal pretext for the torture and mistreatment of prisoners, the court fashioned a similar rule, saying that the law requires “proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught.”

The Zelikow memo satisfies both of these elements—it makes clear that the techniques the Justice Department endorsed constituted criminal conduct, and it applied the “shock the conscience” test of American constitutional law to help reach that conclusion. It could therefore be introduced as Exhibit A by prosecutors bringing future charges.

The Zelikow memo also helps correct a popular misconception about Bush-era torture memoranda generally. DOJ public-affairs flaks routinely claim that they were authored by John Yoo and Jay Bybee in 2002, then withdrawn and reversed in later Bush Administration years after Assistant Attorney General Jack Goldsmith discovered them. Almost every element of this position is misleading—in fact, a long chain of memoranda authorized torture, and it involved a substantial number of lawyers working in the Justice Department long after both Yoo and Bybee had departed; moreover, Goldsmith withdrew only one of the Yoo–Bybee memos, leaving another in place. He also worked on another memo that ultimately approved some torture techniques, though he departed before it was finalized and issued. The Zelikow memo was prepared long after Goldsmith’s departure, and focused on a series of memoranda condoning torture issued by Acting Assistant Attorney General Steven G. Bradbury.

Following the Yoo and Bybee memos, the Justice Department’s Office of Legal Counsel played a game of musical chairs, bringing in a series of persons then replacing them. The object of this game was plainly to satisfy the White House’s relentless quest for a lawyer whose mix of political loyalty, ambition, and absence of integrity and professionalism would lead to memoranda fueling the torture program. When the music stopped, Bradbury was sitting as acting head. His three memoranda are in many respects more appalling than the Yoo–Bybee memos, but they have largely escaped public attention (perhaps because of Yoo’s clamoring for the limelight on the torture issue). In his three principal memos, Bradbury first argued that none of the thirteen techniques constitutes torture; in the second, he argued that even if used in combination, they did not constitute torture; and in the third, he argued that the techniques were not CID, and that even if they were, there was no penalty for them.

In his memo, Zelikow doesn’t take up the question of “torture” per se. By 2006, the issue had been established as the third rail of the Bush years, and acknowledging the obvious fact that techniques like waterboarding were iconic acts of torture would have been career ending. Instead, he focused on the “torture lite” standard of CID, and demonstrated in a straightforward and convincing way how Bradbury had misread existing constitutional precedents, as well as international standards. There’s nothing radical or daring about the Zelikow memo. It simply states a series of established principles of law. The premises and arguments of the Bradbury memoranda, by contrast, are so absurd that they did not withstand the light of day—they were withdrawn by the Bush Administration before it decamped from Washington.

Spencer Ackerman, whose persistence is to be credited for the publication of Zelikow’s memo, astutely pressed its author to answer this question: Why, in light of Zelikow’s findings, did the special prosecutor appointed by Eric Holder to investigate the legality of CIA interrogation techniques fail to bring charges?

“I don’t know why Mr. Durham came to the conclusions he did,” Zelikow says, referring to the Justice Department special prosecutor for the CIA torture inquiry, John Durham. “I’m not impugning them, I just literally don’t know why, because he never published any details about either the factual analysis or legal analysis that led to those conclusions.”

Durham has so far refused to offer any explanations for his decision, and given the expiry of the statutory mandate for a report, it’s unlikely that we will ever hear one. Durham’s decision was probably driven at some level by the Obama Administration’s decision to refuse to “look back,” and at another level by the institutional interests of the Justice Department. After all, in the Bush years, senior DOJ lawyers wrote opinions that aimed to induce CIA agents to use these techniques, promising them they would not face prosecution if they did so. Pressing charges against agents now would entail investigating the criminal culpability of DOJ lawyers, and the DOJ has repeatedly said it will not examine the criminality of its personnel in this sordid affair.

Outsiders may well cast a harsher eye on these facts: Yoo, Bybee, and Bradbury promised that those who used torture techniques would be protected from prosecution. And Durham made good on their promise. If a criminal enterprise was working within the U.S. government to introduce systematic torture, its heart lay deep inside the Justice Department.

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